### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE January 23, 2001 S ession

STATE OF TENNESSEE v. LEE ROY G ASS

Direct Appeal from the Criminal Court for Hamblen County No. 99-CR-240 James E. Beckner, Judge

No. E2000-00810-CCA-R3-CD July 3, 2001

The app ell ant , Lee Roy G ass , wa s co nvi cte d by a jury in the Hamblen County Criminal Court of one
count of aggravated rape, one count of burglary , and one count of offici al miscon duct. The trial
court sentenced the appellant as a Range I violent offender to twenty -two years incarceration in the Tennessee Department of Correction for the aggravated rape conviction and as a Range I standard offender to four years inca

rceration in

the Department for the burglary conviction and to two y ears incarceration for the official misconduct conviction. The trial court ordered concurrent service of the appellant’s sentences, resulting in an effective sentence of twenty -two years incarcera

ti on. In this appeal, the appellant presents the following issues for our review: (1) whether the evidence adduced
at trial is sufficien

t t o support his convictions; (2) whether the trial court erred in sustaining the State’s objection to testimony by a defense witness conce rning the victim’s ne ighbor, P atricia Costner; (3) whether

newly discovered evidence warrants the reversal of the appellant’s convictions andthe remand of this case for a new trial; and (4) whe ther the trial court erred in sentencing the appellant. Following a review of the re cord and the par

ties’ briefs,

we affirm the judgments of the trial court in the aggravated rape and burglary cases and affirm as modified the judgmen t in the official misconduct case.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nts of the Criminal C

ourt are Affirme

d in Part and Affirmed as Modified in Part.

N O RMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., an d J OSEPH M. T IPTON , J., joined.

Scott A. Hodge, Mo

rristown, Tennes see, for the app ellant, Lee Ro

y Gass.

Paul G. Summers, Attorne y General and Reporter; Pet

er M. Coughlan, A

ssistant Attorney

General; H. Greeley Wells, Jr., District Attorney General Pro Te m p ore; Gene Perrin, Assistant District Attorney General; and Jim

Goodwin, Assistant

District Attorney

General,for the appellee, State of Tennessee.

OPINION1 It is the policy of the author of this opinion to refer to all victims of sexual offenses by their initials.

-2- I. Factual Backgr

ound On November 1, 1999, a Hamblen County Grand Jury re turned a pre sentmen t chargingthe appellant with one count of aggravated rape while armed

with a weapon, one count of bur glar y, and one count of of ficial misconduct

. The indictments a

rose from the fif

ty-two-y ear-old appellant’s rape o f eighteen- year-old SAH 1 while the appella nt was on duty

as a constable in Hamblen County. The appellant’s case proceeded to trial on March 8, 2000.

At trial, SAH testified on behalf of the State. She rec

ounted that,between midnight and1:00 a.m. on J uly 10, 1999, she was walking along Morristown Boulevard in Morristown, Tennessee. She explained to the jury that she suffe red from inso

mnia and, theref

ore, frequently walkedalong the boulevard late at night. On the night in quest

ion, however, she noticed a green Jeep Cherokee that appeared to be following her. She became frightened a nd began to run.

As she attempted to elude the Jeep Cherokee, SAH observed another vehicle drive into the parking lot of

a Sherwin-Williams

store. Although u

nmarked, the veh

icle“resembled a cop car.” Accordingly, SAH approached the vehicle. As she a pproached the vehicle, she observed that

a round, blue light was affixed to the vehicle’ s dashboar d, and the appellant was seated inside dressedin a uniform. Specifically , SAH recalled tha

t the appellant “w

as dressed in cou

nty clothes, like a county officer; had a name tag like they usually have, badges, y

ou know, guns - - gun, pepper spray, the w

hole works.” She n

oted that she had n

ever seen the a

ppellant before

that night.

SAH told the appellant about the Jeep Cherokeethat h ad bee n foll owing her. In turn, the appellant invitedher to“ride around” w ith him. SAH agree

d to accompany

the appellant bec

ause she “thought it was okay.” During the ensuing drive, the appellant purchased a Mellow Yellow for SAH from a vending machine. He then drove a sh ort distance outsid

e of town to

the ReMax Realty office building on West Andrew Johnson Highway and parked his vehicle in a parking lot located
at the rear of the building. The appellant explained to SAH that the sheriff’s department maintained an office inside the building, and the appellant needed to use the telephone.

The appellant and

SAH entered the building through a rear door. According to SAH, the appellant appeared to use a key to unlock the door. Once inside the building, the appellant used the telephone, and SAH sat at a nearby desk and waited. After the appellant completed his telephone call, he and SAH began

talking. Thetopic of conversation soon turned to “sexual things,” and the appellant asked SAH if

she had ever engaged in sexual intercourse. When she replied that she had not, the app ell ant “st art ed t alk ing a bou t di ffer ent ways yo u coul d do it and that - - and different positions and stuff like that.” When SAH became upset and “was about to cry or something,” the appellant approached her, placed his arm around her, an d b egan “kissing [her] and junk.” SAH askedthe appellant to stop, pushing him away from her. The appellant complied and indicated that he wanted to go outside a nd smoke a ci garette. Acco rdingly, the tw o left the b uilding.-3- Once outside, how ever, the appellant began “rubbing . . . on [SAH’s] breasts and down in the vagin

al area.” Additionally, he pulled up her shirt and “started sucking on [her breasts].” SAH repeatedly tol d th e appellant to stop . After her third request, the app

ellant again complied, and they went ba ck inside t he office bu ilding.

Inside the building, the appellant and SAH talked for a

while, and, at some point, the appellant received a radio call from a dispatcher or another o fficer req uesting his assista nce in transport ing a patient to Peninsula Hospital, a mental health treatment facility. The appellant responded

that he was busy

and, soon therea

fter, renewed

his sexual advance

s t ow ard SAH by kissing her. When SAH asked the appellant to stop, heinstead removed h is pants and his

gun belt. The appellant placed the gun belt on a desk within “arm’s reach” and recommenc ed kissing SAH, also instructing her to remove her shorts. SAH testified that she initially refused, but “[the appellant] kind of raised his voice and he told me that I better do it.” She recalled that she was frig htened and complied with the appellant ’ s order, w hereupon the appellant engaged in sexual intercourse with her. SAH repeatedly stated to the appel lant, “I don’t wa

nt to do this, stop, . . . please stop, . . . I don’t want to do this.” The appellant merely reassured her that he would not “come in [her] or ge t[her] pregnant.” SAH coul d not rec all at trial whether or not the appellant ever ejaculated during intercourse.

In additio n to engaging in intercourse with

SAH, the appellan

t also ordered he

r to “jack him off” or mastur

bate him. When she refused, he again “yelled” at her a nd she capitulated
to his demand. Afterwards, the appellant left the building, leaving SAH inside. SAH recounted, “I

was just - - I felt so nasty

- - I just went a

head and cleane

d myself up. Y

ou, know, there wa

s some paper towels on the desk, so I used those to wipe myself off.” She thre w the paper towe

ls and a “panty liner” into a trash can where she had ear lier deposited her Mello Yello can.

When SAH finished cleaning and dressing herself, the appellant suggested that they return to Morristown. SAH agreed, explaining at trial that she had no other means of returning to
town. In Morristown, the appellant and SA H encountered several additional officers who invited the appellant to acc

ompany them t

o breakfast.The appellant evidently refused, and the officers soon departed. The appellant then drove SAH to a building that housed a local insurance company where he allowed her to g

et out of the car.

Before he lef

t, the appellant gave

SAH his telephone number.

Following the appellant’s departure, SAH sat on the front steps of t he insu rance company unt il a ppr oxi mat ely 8:00 a.m. She then began walking “to wherever my feet led me.” When she reached the

Morristown-Hamb

len County Res

cue Sq uad, she asked volunteers at the

rescue squad if she could sit down inside. She soon began crying, however, and, whe n one of the volunteers questioned her, she recounted to him the rape. The volunteer suggested that she go to a hospital and also

notify the po

lice. SAH was initia

lly hesitant t

o call the police b

ecause the appellant

was a constable but ultimately spoke with officers of the Morristown Police Department, providing several statements concerning the rape and identifying the a pp ellant a s the offender from a 1999 Hamblen County Sheriff’s Department Yearbook.-4- At trial, SAH denie

d engaging in consensual intercour se with the appellant and denied offering to engage in intercourse with the appellant in exchange for money. However , she conceded that she never physically strug gled with the appellant because she was afra id. She also conceded that, following the appellant’s offenses, she info rmed J une Morrisett of the Morristown Police Department

that the appellan

t never th reaten ed or hurt her. Finally, she conceded that she had previously

made false 911 calls and had previously made and recantedallegations of r ape against another man, namely

her father. With r

espect to the alle

gations of rape

against h

e r father, she explained thatshe had only recanted the allegations because he r paternal grandmother

had offered food and lodging in return. She affirmed the truth of theallegations and, moreover, testified that her father hadbeen convicted o

f sexually molesting her and was currently serving a prison sente nce for his offense. SAH acknowledged that, following the discovery of her father’s offense, she was placed in Lakeshore Mental Health Institute.

In addition to SAH’s testimony, the State presented the testimony of Mike Kitts, a lieutenant with the Hamblen Coun ty Sheri ff’s Department. Kitts testified that, sometime after midnight on July 10, 1999,

he spoke with the a

ppellant by r

adio and request

ed the appell

ant ’s assistance in transporting a violent patient to Peninsula Hospital. The appellant responded that he

was unable to assist

as he “was busy or

on some traffic a

t that time.” On the

same night, Kitts a

lso observed the appellant in the parking lot of a Sav-A-Lot store near West Andrew Joh nso n Hi ghwa y. The appellant appeared to be alone and was purchasing a drink from a vending machine. Fin all y, at app roximate ly 4:00 a.m., Kitts was en route to Hardee’s along with several other of ficers and encountered

the appellant in the parking lot of a Red Food store at

the intersection of Morristown Boulevard

and West A

ndr ew Johnson Highway. The appellant was seated in his vehicle with a female passenger. Kit

ts invited the appellant to a ccompany h

im and the other of

ficers to Harde

e’s, butthe appellant indicated that he was “giving his passenger a ride. Somebody had dropped her off

or something, somewhere, and he had picked her up and was giving her a ride home.” The appellant later joined the office

rs at Hardee’s,

and, when Kitts tea

sed him about the woman in his vehicle, the appellant “laughed it off and said it wasn’t like that, he was just giving her a ride.”

Donald Oliver, a volunteer at the Morristown-Hamblen County Rescu

e Squad, also testified at the appellant’s trial . He rec ounted that, on July 10, 1999, between 1:00 p.m. and 1:30 p.m., he was at the res cue squ ad and observed SAH walking along the road. She approached the

rescue squad and sat down on a bench outside. When it began to rain, she approached the building andasked Oliver if

she could stand inside the door. Oliver and another volunteer named Fred Payne invited her inside and also gave her a Coca-Cola. Oliver recalled t hat “[s ]omething wasn’t q uite right about” SAH, and, in fact, she soon began t o cry. When Oli ver inquir ed if anything wa s wrong, she indicated that she had not eaten for three days. She also recounted to Oliver that a

police officer hadraped her. Oliver

had difficulty

understanding c

ertain portions of

SAH’s account but

ultimately understoodthat she had encountered t he officer in Jeff erson City, a

nd he had offere

d her a ride to Morris town. En route

to Morristown, the officer had stopped his vehicle at a building that was unfamiliar

to SAH. The officer and SAH had then entered the building, where the officer removed SAH’s clothing and raped her. Oliver noted that SAH appeared very tired and, as she rel ated the rape, became very upset. Additionally, she was reluctant to report the rape to the police because her-5-

assailant was a police officer. Oliver nevertheless consul ted with s everal paramedics who were working with the rescue squad, and the paramedics notified the police.

June Morrisett of the Mo

rristown Police De

partment confirm

ed that she spoke w

ith SAH at the rescue squad on July 10, 1999. The officer noted that SAH’s “mental capacity seemed somewhat diminished.” Additionally, SAH cried intermittently as she reported to Morrisett that she hadbeen rape d by a police officer. After providing a statement, SAH led Morrisett to the ReMax Rea lty o ffi ce bu ild ing o n We st A ndr ew J ohn son High way.

Gary Kilgore, a detective sergeant with the Morristown Police Department, testified that, on July 10, 1999, he was dispatched to the ReMax Realty office building on W est Andre w Johnson High way, where he met several officers and SAH. Kilgore noted that the office building is located on a less traveled section of the highway, and the rear of the building is secluded, facing bare fields and

woods. He specifically noted that the rear of the building cannot be seen from

the high way. Inside the building, Kilgore examined and photographed the rear office in which the rape occurred. Kilgore recalled that the police removed hairs from two chairs located inside the office andalso disco vered paper t owels, a pan ty liner, a Mel lo Yello can , and a ciga rette package in an office trash can.

After examining the scene of theoff ens es, Kil gore int ervi ewed SAH . Ad dit ion all y, he contacted the ap

pellant and asked

him to come to th

e Morristown Police Department. The appellant acceded to Kilgore’s request and, upon arriving at the station and being informed of SAH’s allegations, al

so agreed to spe

ak with Kilgore. On this

occasion, the appellant admitted giving an unknown girl a ride in his vehicle on the previous night but denied taking the girl to th e ReMax Realty off ice bu ilding or engaging in any form of se xual activity with her. Indeed, the appellant claimedthat he was with the girl for only ten or fifteen minutes. The appellant admitted, however, giving the girl his telephone number. He explained that the girl had indicated she possesse d information concerning illegal drug transactions. The appellant also admitted that his wife was formerly employed as a cleaning woman by ReMax Realty but

denied possessing a key to the office building and asse

rted that he had no

t been inside the bu

ilding since Apr

il.

On July 14, 1999, the appellant returned to the police department and pr ovid ed a secondstatement to the police. On this occasion, the appellant admitted that he was inside the rear office of the ReMax Rea lty o ffi ce bu ild ing a t ap pro xim ate ly 1: 00 a .m. on M ay 5 th or 6 th . According
to the appellant, he was accompanied by a woman named Edna Heck, who performed

oral sex upon the appellant. The appellant stated that he had also visited

the office buildin

g with Heck on two prior occasions. The appell an t explained that he had previously worked at the ReMax Realty office building and had d isco vered that the rear door could be opened with any key . The appellant concluded t hat the own ers of the bu ilding were u naware of his activitie s inside t heir build ing.

On July 15, 1999, the appellant provided a third and final statement to Kilgore. On this occasion, the appellant again confirmed that he had previously visited the ReMax Realty office building with Heck but also confessed that he took SAH to the office building in the early morning-6-

hours of July 10, 1999. He asserted that he went to the office building in order to make a telephone call. However, he conceded that, once inside the building, he only pretended to make a telephone call. The appellant re

counted that, at th

at point, SAH unzippe

d his pantsand fondled him. As she fondledhim, she offered to engage in sexual intercourse with him in exchange for thirty dollars. The appellant asserted that he refused SAH’s offer, whereupon she offered to “jack

him off” for twen

ty dollars. The appellant claimed that he n everth eless persisted in his refusal to engage in sexual activity with SAH, and they soon left the building. The appellant admitted knowing that he “wasn’t supposed to be in

that ReMax Building

” on the night of h

is offenses. However, the ap pellant also asserted that one of the owners of the building, “Monty,” had once indicated to him that “it was okay to use or check out

the bui ldi ng.” Spe cif ica lly, the app ell ant ass ert ed t hat “Mo nty” had given him permission to use the telephon es inside the buildin

g. He concede

d that th e o wner never provided him with a k ey to the build ing.

During the course of his Jul y 15, 1 999 statement, the appellant initially denied engaging in sexual intercourse with SAH. However, when Kilgore reminded the appellant of the possibility that semen might be recovered from the victim, the appellant conceded that “there was

someslight penetrat

ion.” Neverthel

ess, the appellant insisted that he was entirely passive during his
encounter with SAH, stating,

“I didn’t do it.

I was standing

there and she g

ot a hold of it

. . . .” The appellant noted that, on the night in question, SAH “acted . . . like she was on drugs or

smoking pot or something. . . . I mean she talked sensible half the time.”

Kilgore testified at trial

that, in fact,

no semen was found

on vaginal swabs obtained from the victim, on the underwear worn by the victim on the night of the offenses, or on th

e panty liner and the paper towels recovered from the trash can at the ReMax Realty office building. He remarked, howe

ver, that saliva w

as detected on SAH ’s breasts.

Edna Heck also testified on behalf of the State. She admitted that she knew the appellant. However, she denied ever accompanying the appellant to the ReM ax Realty office building, and she

denied ever eng

aging in any

form of sexual acti

vity with the a

ppellant.

Fin all y, Bob Mitchell testif ied that he and a ma

n named Monty

Sams were co-owners of the ReMax Realty office building on West Andrew Johnson Highway. He

asserted that he never granted the ap

pellant permission

to enter the buildin

g on the night of

these offenses.

The appellant

declined t o testify on his own behalf. Instead, he presented the testimonyof Dorothy Hawk, a neighbor of SAH. Hawk related to the jury that, approximately two weeks prior to the appellant’s offenses, she wassitting on her porch and overheard a conversation betweenSAH and an other n eighbor named Patricia Costner. During this conversation, Costner stated to SAH that she wanted to “get rid of” a boyfriend. Costner furthe r remarked, “Well, I’ll get him some way if I have to charg e him with rape.” SAH responded, “Well, I’ll get somebody before you do.”2 Clark testified that, to her

knowledge, SAH did not have any boyfriends other than Allen, and Allen had stated to Clark that he and SAH were currently only friends.

-7-

Sub seq uen tly, Hawk read an article in the local newspaper concerning the appe llant’s offenses. Soon thereafter, she confront ed SAH conce rning the article, indicating that she did not bel ieve SAH’s accusation of rape. Hawk testified that SAH laughed and stated, “Well, the s.o.b

. made me mad . . . [b]ecause he made me get out of his car.” Hawk conceded that, upon reading the newspaper

article, SAH bec

ame upset. Howev

er, Hawk asser ted that SAH’s agitation stemmed solely from a statement in the article indicating that SAH was mentally retarded.

Lorie Clark, another neighbor of SAH, testified that she too overheard the conversation between SAH and Costner during which Costner stated that she was going to accuse her current boyfriend of rape in order to “g et rid of” him. According to Clark, Costner also stated that she had falsely accused a boy friend of rape when she li ved in Georgia. Clark added that she overheard yet another

conversation between SAH and Costner prior to these offenses. During this secondconversation, Costner asserted , “I’m going

to get my na

me inthe paper.” SAH responded, “Well, I bet my name goes in the paper f irst before you.” Moreover, Clark testified that she overheard a conversation between SAH and a “boyfriend” 2 named Hugh Allen during which SAH threatened

to charge Allen with rape. Finally, Clark related that she was present when Hawk showed SAH the newspaper article concer ning the appellant’s offenses. Like Hawk, Clark testified concerning SAH’s remark that the appellant had angered her by forcing her to get out of his car and refusing to drive her home. Moreover, like Hawk, Clark testified that SAH appeared

upset by the referenc e in the newspaper article to her mental retardation. Clark noted that, in fact, SAH “was mentally handi cap ped to some degree.” Clark conceded that SAH never indicated that she had fabricated her

accusation ag

ainst the appella

nt.

At the close of

the tri al, the jur y con vic ted the app ell ant of ag grav ate d rap e, b urgl ary, andofficial miscondu

ct. Immediate

ly thereafter, the trial court conducted a sentencing hearing, at the conclusion of which the court imposed an effective sentence of twenty-two y ears incarceration in the TennesseeDepartment of Cor rection. The app

ellant now appea

ls both his convictions and the trial court’s sen

tencing determ

inations.

II. Analysis A. Sufficiency of the Evidence

The appellant first chal l enges the suff iciency of

the evidence und

erlying hi

s convictions. The appellant rests his challenge entirely upon the grounds tha t the trial was a credibility

contest and the vic

tim “is a chronic li ar.” We preliminarily note that the appellant’s argument casts in bold relief the standards by which this court reviews the sufficiency of evidence. In particular, all factual

issues raised by the evidence, including questions concerning the credibility of witnesses and the weight and value to be given the evidence, are resolved by the trier of fact and
notthis court. State v. Pruett
, 788 S.W.2d 559, 561 (T enn. 1990). Thus, i

n order to succe

ssfully challenge a jury’s resolution of factual issue

s in favor of the Sta

te, the appellant

must demonstrate
to this court that no “rational trier of fact” c ould have found the essential elemen

ts of the offense-8-

beyond a re

asonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e ). These standar

ds apply
to convictions based upon direct evidence, circumstantial evidence, or both. State v. Carruthers , 35 S.W.3d 516, 557 (Tenn. 2000).

Consistent with the above standards, we have held that, generally , the uncorroborated testimonyof a single witne ss will support a

defendant’s conviction. Statev. Anthony Lynn Wy rick
, No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at *13 (Tenn. Crim. App. at Knoxville, May 4, 2001) (citing Letner v. Stat e , 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974)); see also Sta te v. McKnigh t , 900 S .W.2d 36, 48 (Tenn. C rim. App. 1994); State v. Frank Kenneth Talley , No. 01C01-9612 -CC -00524, 1999 WL 722631, at *4 (Tenn. Crim. App. at Nashville, September 17, 1999). This court will

only intrude upon the province of the trier of fact and disturb its assessment of a witne ss’ credibi lity in the ra rest of cases. F

or example, this cou

rt will disregar

d a witness’ testimonyif it is “entirely irreconcilable with the physica l evidence.” State v. Hornsby , 858 S.W.2d 89 2, 894-895 (Tenn. 1993); see also Stat e v. Matthew Douglas Cox , No. E1999-00351-CCA-R3-CD, 2000 WL 1562 920, at *10 (Tenn. Crim. App. at Knoxville, October 20, 2000), perm. to appeal denied
, (Tenn. 2001). Add iti ona lly, a witness’ uncorroborated and contradictory statements made under oath and concerning the same fact will cancel each other if the contradiction is unexplained. Statev. Matthews , 888 S.W.2d 446, 449-4 50 (Tenn. Crim. App . 1993); State v. Michael Dwayne Edwards
, No. W1999-00591-CCA-R3-CD, 2000 WL 674671, at *3 (Tenn. Crim. App. at Jackson, May 16, 2000), perm. to app eal denied , ( Tenn. 2000). More broadly, this court will disregard testimony“‘if it is so indefinite, contradictory or unreliable that it would be unsaf e to re st a conviction thereon.’” Letner , 512 S.W.2d at 649; see also Wyrick , No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at *13.

We conclude that the appellant’s ca se is not among the rarest of cases. SAH’s testimonywas consistent with physical evidence relating to the appellant’s offenses and, moreover,

was partially corroborated by the testimony of other State witnesses and the appellant’s own, final
statement to the police. The

record is devoid o

f any sworn

statement by

SAH contradic

tin g her testimonyat trial concerning the appellant’s offenses. Indeed, SAH has consistently

maintained that the appellant raped

her. As to SA

H’ s “history of falsity and lies,” we ac knowledge this court’s holding in Wyrick
, No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at *24 (citations omitted), that [p]ri orf

als e rep ort s of cri me a re re lev ant to a wit nes s’s cred ibi lit y. Similarly with reg ard to sexual offenses, t he fact that a vic

tim previously

accused another of

raping her is material

to her charge of rape against the def

endant if proof exists that the victim falsified the prior accusation. Nevertheless,

we do not believe that, in this case, the evidence of prior false reports of crime by SAH rendered her testimony at trial “so indefinit e, co ntr adi cto ry or unr eli abl e” as to b e a nu lli ty, particularly

in the context of the appellant’s inconsistent statements to the police. See, e.g.

, Hackney

v. State , 551 S.W.2d 335, 339 (T enn. Crim. App. 1977

); State v. William Pierre Torres , No. E1999- 00866-CCA-R3-DD, 2001 WL 245137, at *38 (Tenn. Crim. App. at Knoxville, March 13, 2001);-9-

Otha Bomar v. State , No. 01C01-9808-CR -00342, 2000 WL 1 9763, at *3 (Tenn. Cr i m. App. at Nashville, January

13, 2000), perm. to appeal denied , (Tenn. 2000). Indeed, we note that it is not
at all clear from the record that S AH’s prior accusation of rape against her father was false. Co rres pon din gly, testimony by defense witnesses about SAH’s possible motives to fabr icate a n accusation of rape against the appellant merely pr esented a classic jury question.

Having declined to distu

rb the jury’s assessment of SAH’ s credibility , we additionally conclude that the evidence is otherwise sufficient to support the jury’s verdicts. With respect to the appellant’s conviction of aggravated rape, the State was required to prove bey ond a reasonable

doubt the following essential elements: (1) the appellant engaged in the unlawful sexual penetration of the victim; (2) the appellant employed force or coerc ion to accomplish the act; (3) the appellant was

ar med with a weapon; and (4) the appellant acted intentionally, knowingly , or recklessly. Tenn. Code Ann. § 39-13 -502(a)(1) (1997); Tenn. Code Ann. § 39-11-301(c) (1997). “‘Force’ mea ns compulsion by the use of physical power or violenc e,” Tenn. Code Ann. § 39-11-106(a)(12) (1997), and“coercion” is defined as a “threat of kidnapping, extortion, force or violence to be perf ormed immediately

or in the future,” Tenn. Code Ann. § 39-13-501(1) (1997). “ Sexual penetration” denotes “sexual intercour se . . . or any other intrusion, however slight, of any part of a person’s body or of any object

into the genital or anal openings of the victim’s, . . . but emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7).

In this case, the appellant himself confessed to police that he engag ed in “some slight

” penile penetration of SAH’s vagina or genital opening at the ReMax Realty office b uil ding. Moreover, while the appellant did not wield his gun during his sexual penetra tion o f SAH, the aggravated

rape statute only

requires the Stat

e to establish “tha

t the appellant’s p

osse ss ion of a weapon‘occurred in

association with the unlawful sexual penetration, whether . . . [the possession] occur[red] before, during, or after the actual sexual penetration.’” Cox , No. E1999-00351-CCA-R3- CD, 2000 WL 1562920,

at *11 (alteratio

n in original); see also State v. Ra ndy Hodge , No. 91, 1991 WL 28952, at **4-5 (T

enn. Crim . App. at Kn oxville, March 5, 1991). As noted earlier, SAH testified that, prior to eng aging in sexual in tercourse with he r, the appellant p

laced his gun be

lt within “arm’s reach”

and ordered her

to remove her shor

ts. Sh e further rec ounted that, when she refused, the appellant raised his voice and told her that she had “better do it,” wh ereup on she complied. Not only does this testimony establish the essential element that the appellant’s unlawful sexual penetration of SAH was accompanied by his possession of a w

eapon, but the tes

timony also establishes the appellant’s use of coercion or thre

at of force or vi

olence, albeit

the threat was implied, andhis possession of the requisite mental state. See Statev. Leland Ray Reeves , No. 01C01-9711- CR-00515, 1999 WL 155926, at *3 (Tenn. Crim. App. at Nashville, March 23, 1999) (holding that

an “implicit threat of

violence” qualif

ies as coercion u

nder Tenn. Code A

nn. § 39-13-501(1 )); cf. McKnight
, 900 S.W.2d at 48 (holding that, without forc

e or threat, ther

e could be no "coercion" as statutorily defined).

With respect to

the appellant’s conviction of burglary, the State was required to prove beyond a reasonable d oubt the fo llowing ess ential elem ents: (1) t he appellan t entered a b uilding, other than a habitation, that was not open to the public; (2) the appellant ent ered the building

with-10-

the int ent to commit a felony, namely rape; (3) the appellant did not have the effective consent of the property owner; and (4) the appellant acted intentionally, knowingly, or re cklessly. Tenn. Code Ann. § 39-14-402(a)(1) (1997); Tenn. Code Ann. § 39-11-301(c). “‘Effective consent’ means assent in fact, whether e

xpress or apparen

t, including asse

nt by one leg

ally author

ized to act

for another.” Tenn. Code Ann. § 39-11-106(a)(9).

It is undi sput ed that the appellant entered the ReMax Realty office building on the night of these offenses when the building was not open to the public. As to the appellan t’s intent to commit a felony inside the off

ice building , a defendant’s “declared pur

pose is but one fac

tor in ascertaining whether his entry was with felonious intent. ‘One's actions are circumstantial evidence of his intent.’ In addition, the circumstances surrounding the entry must also be viewed i n determining intent.” State v. Holland , 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993) (citation omitted); see also State

v. Christopher D. Smith , No. 03C01-9807-CR-00270, 1999 WL 482197, at *3 (Tenn. Crim. App. at Knoxville, July 12, 1999), perm. to appeal denied , (Tenn. 1 999). We believe that the appellant’s actions in this case and the circumstances surrounding his entry into the ReMax Realty office building just ify the jury’s conclusion that the appellant enter ed the building withthe inten t to rape S AH. We especially note that, notwithstanding the appellant’s “declared purpose” of

making a telephone

call, the appellant admitted to police that he only pretended to make

a telephone call once inside the building. Similarly, we note the isolated nature of the location to which the appellant transported SAH. As to any “effective consent” by the property owners to the appellant’s entry into the office building on the night of

these offenses, the record before this court supports a

conc lusion that the appellant did not have the effective consent of the owners, that the appellant was at least aware of the

risk that he did not have the effective consent of the owners, and that he disregarded that risk. Cf. State v. James Alber t Adams , No. M1998-00468-CCA-R3-CD, 1999 WL 1179580, at *7 (Tenn. Crim. App. at Nashville, December 15, 1999), p erm . to appeal denied , (Tenn. 2000).

Further addressing the issue of effective consent, we again note Bob Mitchell’s testimonythat he never g ave the appell

a nt permission to enter the building on July 10, 1999. Of course, during his third and final statement to the police, the appellant contended that he had been givenpermission by the other co-owner, Monty Sams, to “use” the building to mak

e telephone call

s. Yet, the appellant

also admitted knowing that he “wasn’t supposed t o be in that ReMax Buil ding”

on the night of his offens es and admitt ed that nei ther owner h ad given him a key to the bui lding. Rather, he conceded that he was only able to enter the bui ld ing following th

e close of busines s because, during his past employment by ReMax Realty , he discovered a defect

in the lock securing the rear entrance. Moreover, in an earlier statement to the police, the appellant admitted that neither

owner was aware of his

late-night use of the office building. In short, “a jury is e ntitled to accept that portion of the [appe

llant]'s pretria

l statement . . . that

it deem[s] credible

and reject that

which it deem[s] to be false.” State v. James Clayton Young, Jr. , No. 01C01 -9605-CC- 00208, 199 8 WL 258466, at *9 (Tenn. Crim. App. at Nashville, May 22, 1998).

Turning to the appellant’s conviction of official misconduct, the State was required
to prove beyond a reasonable doubt the following essential elements: (1) the appellant wa s a “public-11-

servant”; (2) the appellant committedan act under col or of office or e

mployment tha

t exceeded his official power; (3) the appellant acted intentionally or knowingly; and (4) the appellant intended to obtain a benefit or to harm another. Tenn. Code Ann. § 39-16-402(a)(2) (1997). A public servant “means a person elected, selected, appointed, employed, or otherwise designated as one (1) of the following . . . [a]n officer, employee , or agent of government.” Tenn. Code Ann. § 39-16-401(3) (1997). Moreover, “a public servant commits an act under color of office

or employme

nt who acts

or purp orts to act in an official capacity or takes advantag e of such actual or purported capacity.” Tenn

. Code Ann. § 39-16-402(b). I n this case, the ap

pellant was on duty

and in uniform as a constable in Hamblen County

at the time

of these offenses. SeeTenn. Code Ann. § 8-10-101 to -117 (1993 & 2000 Supp.). He used the trust inspired by his official capacity to pick up a young woman in his vehicle, drive her to an isolated office building, and rape her. Accordingly , we conclude that

a rational jury

could have found a

ll the ess ential elements

of official misco

nduct. This issue is without merit.

B. Testimony Concerning Patricia Costner

The appellant next cont

e nds that the trial court erred in sustaining the State’s objection to testimony by defense witness Hawk co ncerning Patricia Costner’s accusation of rape against a boyfriend soon after

the appellant’s offenses. In essence, the appellant arg ues that the trial court’s ruling constituted an impermissible comment upon the evidence due to the trial court’s failure to clarify t

he grounds for i

ts ruling. Moreov

er, the appell

ant assert s that the trial court’s ruling denied him an opportunity to present a complete defense, thereby violating principles of due processembodied in the Fif th Amendment to

the United States Constitution and Article I, Section 9 of the Tennessee Constitution.

The appellant’s complaint arises from the fol lowing proceedings, during which defense counsel questioned Hawk concerning her confrontation wi th SAH about the newspaper article describ

ing the appellan

t’s offenses: Defense Counsel : Was there anything else said during this

conversation? Hawk: [Costner] said that she used to ac

cuse people in Georgia of raping her. And my neighbor, other neighbor , asked

w hy, and she said, Just to get attention. Trial court: That’s - - - Defense Counsel : Wait, wait. Let’s slow down. Trial court: Let’s don’t be talk ing about other thi ngs a third party said. Hawk: No, I’m s orr y. Defense Counsel : After that took place, wh

at next occu rred? What happened then? Hawk: Well, a few days l ater [Costner’s] boyfriend

came in. I was sittin

g out on the porch. She3 The appellant argues in his brief that, “[b]ecausethe State’s objection was in i mproper form by

not stating

reason for his objection,

the Court’s excl

usion of the evi

dence should be tr

eated as . .. sua spont

e.” Arguably, however , the
spe cific bases for the exclusion of H awk’s testimony were apparen t from the context in which th e State proffered its objection. See, e.g. , Tenn. R. Evid. 10 3(a)(1). First, the trial court had just sua sponte and without objection by defense counsel excluded from evidence on hearsay grounds other o ut-of-court statements made by Costner. Second, the disputed testimony’s questionable relevan ce to the appellant’s case guarant eed an objection a

nd, absent any response by defense counsel, the trial court’s ruling in f avor of the State. In any event, the appellant him self acknowledges that a trial court’s

sua sponte exercise of control over the exam ination of a witness does not necessarily am ount to an imperm issible comment upon the evidence.

Thus, we have approv

ed a trial court’s sua s

ponte limitat

ion of irrelevant testimony. State v. Dooley

, 29 S.W.3d 5 42, 548 (Tenn. C rim. App. 2000 ); State v. Combs , 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996). Similarly, we have held that it [is] not an abuse of discretion for the tr ial court to [sua sponte] require that counsel avoid compound q uestions, base h is questions on facts in proof, limit hear say testimonyto allowable exceptions, and permit t he witn ess to finish an answer without inter

ruption. Estes
, No. 02C01-9512-CC-00379, 1997 WL 119510, at *3. For the reasons subsequently set forth, we ca

nnot conclude (continued...)

-12- unlockedthe door and let him in. And I was sitting out on the porch. I didn’t hear a thing. And she turned around and accu sed hi m of raping her. Prosecutor: Judge, I’m g oing to object. Trial court: Sustained. It has - - What Pa tricia Costne r said, mem bers of t he j ury, has nothing to do with this case. Defense Counsel : You r Ho nor , if I cou ld j ust - - Ok ay. Following the above exchang e, defense counsel quickly concluded his examination of the witness.

Ou rsuprem e court has observed that Article VI, Section 9 of the Tennessee Constitution prohibits judges from commenting upon t he credibility of witnesses or oth

erwise expressing an opinion concerning the weight of the evidence presented dur ing a trial. State v. Suttles
, 767 S.W.2d 403, 406 (Tenn . 1989); see also State v. Odom , 928 S.W.2d 18, 32 (Tenn. 1996); State v. Brown , 823 S .W.2d 57 6, 588 (Tenn. Crim. App. 1991); State v. Alberto B aretta Estes , No. 02C01-9512-CC-00379, 1997 WL 119510, at *2 (Tenn. Crim. App. at Jackson, March 18, 1997). In other words, “the trial judge decides the law and . . . the jury decides the facts.” State

v. Jason Thomas Beeler , No. W1999-01417-C CA-R3-CD, 2000 WL

1670945, at *24 (Te

nn. Crim. App. at Jackson, November 2, 2000). Thus, while “[t]he propriety, scope, manner and control of examination of witnesses is within the trial court's discretion,” Statev. Harris , 839 S.W.2d 54, 72 (Tenn. 1992) ; see also State v. Hutchinson , 898 S.W.2d 161, 172 (T enn. 1994); State v. John D. Joslin
, No. 03C01-9510-CR-00299, 1997 WL 583071, at *42 (Tenn. Crim. A pp. at Knoxville, September

22, 1997); Tenn. R. Evid. 611(a), the trial court’s exercise o f its di scretion must be consistent with the line drawn by our constitution dividing the functions of the judge and the jur y. As in the i nstant case, claims that a trial court has “crossed the line” or abused its discretion may arise from the manner in which thecourt rules upon a party’s objection to the admission of a witne

ss’
tes tim ony. 33 (...conti nued) that the trial court abused its discretion in this case.

-13-

That having been said, we do not believe that the trial court’s ruling in this case and its accompanying instruction to the jury c onveyed any opinion

concerning the credibility of defense witness es or the weight of evidence presented either for or against the appe llant. Moreov er, i f defense counsel was concerned

about the jury’s possible misapprehension of the trial court’s ruling andthe grounds ther

eof, the appella

nt had an opportuni

ty to reques

tclarificationfrom the trial court andfailed to avail himself of that opportunity. Tenn. R. App. P. 36(a). Finally, a t the conclusion of t he t ria l, t he t ria l co urt ins tru cte d th e ju ry:

At times during the trial I have ruled upon the admissibility of evidence. You must not concer n yourself with these rulings. Neither by such rulings, these instruct ion s, nor any remarks which I have made, do I mean to indicate any opinion as to the facts or as to what your verdict should be. It is well settled in the state of Tennessee that a jury is presumed to have followe d a trial court 's instructions,

and the record

befor e this court does not rebut that presumption. Spicer v. State, 12 S.W.3d 438, 449 n.14 (Tenn. 2000).

As to the appellant’s complaint that the trial court’s ruling denied him an opportunity
to present a complete defense, “[t]he Sixth Amendment [to the United States Constitution] and the Due Process Clause of the Fourteenth Amendment clearly guarantee a criminal defe ndant the right
to present a defense which includes the right to present witnesses favorable to the defense.” State

v. Brown , 29 S.W.3d 427, 432 (Tenn.), cert. denied , __ U.S. __, 121 S. Ct. 2 75 (2000); see also State

v. Phipps , 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994) (“Defendants have a right to present competent

and reliable evi den ce in support of their defenses.”). The Tennessee Constitution similarly guarantees an accused a meaningful opportunity to present a competent defense, State v. Braden
, 867 S.W.2d 750, 760 (T enn. Crim. App. 1993), a right that our supreme court has suggested is coextensive with the federal constitutional guarantee, State v. Sheline , 955 S.W.2d 42, 47-48 (Tenn. 1997). However, the right to pres ent a complete de

fense does not entitle a defendant to place before the jury irrelevant evidence. Id. at 47. Indeed, “even the right to present relevant evidence ‘ma y, in an appropriate case, bow to ac commodate other legitimate interests in the criminal trial process.’” I d. ; cf

. Brown , 29 S.W.3d at 432-436. In this regard, our supreme court in Brown , 29 S.W.3d at 433-434, set forth the necessary analy sis when determining whether the con stitu tional right to present

a defense has been violated by the exclusion of evidence. See also State v. Coley
, 32 S.W .3d 831 , 83 8 n. 14 ( Ten n. 2 000 ). S peci fic all y, courts must consider the following factors: (1) whether the excluded evidence is critica l to the defense; (2) whether the evidence bears sufficient indicia of reliability; an d (3) whether the interest supportin

g the exclusion of t

he evidence is substantially

important. Coley , 32 S.W.3d at 83 8 n.14 (ci ting Chambers v. Mississippi , 410 U.S. 284, 298-301, 93 S. Ct. 103 8, 1047-1049 (1973 )); Brown , 29 S.W.3d at 433-434 (similarly ci ti ng Chambers , 410 U.S. at 298-301, 93 S. Ct. at 1047-1049).-14- Once again, the appellant’s failure to request clarification of the trial court’s ruling and, moreover, h

is failure to explain to the trial court the specific evidentiary basis supporting the admission of Hawk’s testimony preclude our consideration of this issue. Tenn. R. App. P. 36(a) ; Tenn. R. Evid. 103(a)(2). Additionally, the appellant’s argument on app

eal, consisting of a summary assertion that, “[i] f . . . Haw k had been allowed to continue, her testimony would have been very relevant to the question on [SAH ’s] credibility , which was a

central issue in

this case,” is ina

dequate andresults in the waiver of this issue. Tenn. R. App. P. 27( a)(7); Tenn. Ct.of Crim. App. Rule 10(b). Indeed, we note that the appellant does not state what

additional testimony would have been forthcoming from Hawk aside from her testimony concerning Costner’s accus ation of rape ag

ainst

a boyfriend following these offenses, nor did the appellant at any

time attempt to submit an offer of proof to the trial court i

n accordance w

ith Tenn. R. Evid. 103(a)(2). Finally, we conclude that any

error was undoubtedly harmless. Chapman v. California , 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). Although we may surmise that the appellant was attempting to present more evidence in support of his theory that Costner and SAH were engage d in an ongoing competition to make false accusations of rape and obtain mention in the local newspaper, this theory was otherwise clearly conveyed to the jury throug

h the testimony

of both defense w

itnesses.

C. Newly Discovered Evidence

The appel lant next challenges the trial court’s denial of his motion for new trial on the basis of newly

discovered evid

ence. The appe

llant attached to his m

otion for new trial an affidavit comple

ted by Robin L

ong, an inmate

of the HamblenCounty Jail. In the affidavit, Long asserted that, prior to the appellant’s trial, she spoke with SAH “numerous” times con c erning the victim’s accusation of rape. According to Long, SAH admitted during these conversations that she hadfabricated the

accusation and a

dditionally st

ate d her intention to commit perjury at the appella nt’s trial. Long m

aintained in the a

ffidavit that she d

id not talk with the a

ppellant o r appellant’s counsel until March 30, 2000, following the conclusion of the a ppellant’s trial. The affidavit,although signed by both Long a n d thr ee witnesses, was not notarized. Defense counsel also completed an affidavit asserting that he “made diligent efforts to contact potential witnesses for Mr. Gass’ defense,” but “was not made aware of Ms. Robin

Long’s testi

mony or her e

xistence until March 30, 2000.” Defense counsel’s affidavit was both signed and duly notarized.

The trial court conducted a hearing on the appellant’s motion for new trial on March 31, 2000. At the hearing, the appellant made no attempt to present Long’s testi

mony to the court or request a continuance of

the hearing for

the purpose of securing Long’s presence. I n any event, the court concluded:

[I]t is s ome thi ng th at a t be st i s me rel y c um ulative; similar evidence

was presented at the trial. And, of course, the most incriminating evidence of all against Mr. Gass was his own statements and the tape recording in which he pretty well adm itted everythi ng that the prosecutrix claimed. I find that this does not meet the guidelines of newly discovered evidence. It did exist prior to the trial itself, and no dif fere nt r esu lt w oul d ha ve b een r each ed, anyw ay.-15- The decision to grant or

deny a new

trial on the basis

of newly discovered evidence rests within

the sound discretion of the trial court. Statev. Goswick , 656 S.W.2d 355, 358 (Tenn. 1983); State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). The trial court’s exer cise of its discretion is dependent upon (1) whether the defendant was reasonably

diligent in

attempting
to discover the evid

ence; (2) wheth

er the newly

discovered evid

ence is material ; and(3) whether the evidence would likely

have changed the result of the trial. State v. Nichols , 877 S.W.2d 722, 737 (Tenn. 1994) (appendix); State v. Singleton , 853 S.W.2d 490, 496 (Tenn. 1993). Generally, “[a] new trial will not be granted when the newly di sc overed evidenc e would have no ef

fect other than t

o impeachthe testimony of a witness.” State v. Joe Michael Green , No. 02C01-9711-CC-00429, 1999 WL 632235, at *3 (Tenn. Crim. App. at Jackson, August 20, 1999). However, this general rule will yield if the impeaching eviden ce “i s so crucial to the defendant’s g

uilt or innocence

that its admission will probably result in an acquittal.” Singleton , 853 S.W.2d at 496. Obviously, when a verdict is a lre ady o ne o f qu est ion abl e val idi ty, even newly discovered evidence of relatively minor importance may be sufficient to create the requisite probability of acquittal. Id.

Applying the above principles, we decline to disturb the trial court’s exercise of

its discretion. Initial ly, we agr ee with the State th at the affidavits

submitted by th

e appellant fail t

o “set[] forth facts s howing that he and his counsel exercised reasonable diligence and were not negligent in

the search for evidence

in preparation for the trial of the case,” particularly in lig ht of the possibility that Long’s conversations with SAH occurred while SAH wa s herself incarcerated in the Hamblen County Jail prior to the appellant’s trial. Jones v. State , 452 S.W.2d 365, 367 (Tenn. Crim. App. 1970); see also State v. Marlon D. Beauregard , No. W1999-01496-CCA-R3-CD, 2000 WL 705978, at *4 (Ten

n. Cr im. App. at Jackson, May 26, 2000), perm. to appeal denied , (Tenn. 2001). Moreover, even assumingthe exercise of reasonable diligence by the appe

llant and defense counsel and acknowledging the materiality of

the proposed testimony, we cannot conclude that the testimonywould “pro b ably” result in an acquittal. In reaching our conclusion, we note that the appellant’s own lack of cred ibility undoub

tedly play ed a crucial rol

e in the jury ’s resolution of thi s

case in favor of the Sta

te and further note thequestionable credibility of the source of the proposed testimony. Th

is issue is without mer

it.

D. Sentencing

Fin all y, the appellant challenges the length of his sentences. Appellate review of the length of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court considers the following factors: (1) the evidence, if any, rec eived at the trial and the sentenc ing hearing; (2) the pre-sentence report; (3) the principles of sen

tencing and ar

guments

as to sentencing alternatives; (4) the nature and characteristics of the

criminal conduct involved; (5) evi dence and information offered by the parties on enhancement and mitiga ting factors; (6) an y statement by

the defendant on

his own behalf; and (7) the poten tial for rehabili

tation or treatme

nt. Tenn. Code Ann. § 40-35-102, -103 (1997), -210 (1999). See also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The burden is upon the appellant to demon strate the impropr

iety of his se

ntences. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record revea

ls that the trial court adequately considered sentencing princ iples and all relevant facts and circumstances,

this court will accord the trial court’s determinations a presumption of correctness

.-16-

Id. at (d); Ashby , 823 S.W.2d at 169. Fo r reasons set for

th below, we do not defer to the trial court’s determinations in this case.

The statutorily prescribed procedure for determining the length of a felony sentence is set forth in Tenn. Code Ann. § 40-35-210. The presumptive sentence for a class A fel

ony is the midpoint in the range if there are no enhancement or mitigating factors. Id. at (c). In contrast, the presumptive sentence for both class D and E felonies is the minimum sentence in the range. Id. If there are enhanceme

nt and mitigating

factors, a court must

start at the presumptive sentence in the range, enhance

the sentence as appropriate for the enhancement factors, and then reduc e the sentence as appropriate for the mitigating factors. Id. at (e).

Again, the appellant was convicted of the class A felony of aggravated r ape, Tenn. Code Ann. § 39-13-502(b), the class D felony of burglary

, 39-13-402(c), and the class E felony of official misconduct, Tenn. Code Ann. § 39-16 -4 02(d). At the sentencing hearing, the trial court found that all of the appellant’s of fen ses “involved a victim and w[ere] committed to gratify the defendant’s desire for pleasure or excitement.” Tenn. Code Ann. § 40-35-114(7) (1997). Moreover, the court considered the appellant’s abuse of a position of public trust in enhancing the sentences for the three offen

ses. Id. at (15). With respect to the appellant’s convictions of burglary and official misconduct,the trial c ourt further considered the appellant’s possession of a firearm during the commission of the offenses. Id. at (9). Finally, in mitigating all of the appellant’s sentences, the trial
court noted the appellant’s lack of any criminal record. Tenn. Code Ann. § 40-35-113(13) (1997). The trial court emphasized that the lack of a criminal record rendered it “unlikely that a sustained intentto violate the law motivatedthe [appellant’s] criminal conduct.” Tenn. Code Ann. § 40-35- 113(11). In a

ccordance with

these considerations, the trial court imposed a mid-range sentence of twenty-two

years incarceration in the Tennessee Department of Correction for the aggravated rape conviction, a maximum sentence of four years incarceration in the Depa rtment for the burglary

c onvi ction, and a maximum sentence of two years incarceration for the off icial misconduct conviction. The tr

ial court ordere

d concurrent se

rvice of these se

ntences.

Pre lim ina ril y, we note that, on appeal, the appellant does not contest the trial court’s consideration of his abuse of a position of public trust in enhancing all of his sentences, Tenn. Code Ann. § 40-35-114(15), nor does the appellant contest the trial court’sconsideration of his possession of a firearm during the commission of the burglary and of ficial misconduct off

enses, id. at (9). Pursuant to our de novo review, we a gree that the tr

ial court proper

ly consider

ed the latter fac

tor in enhancing the appellant’s s entences for bu

rglary a nd official miscon

duct. However, w

e must conclude that the trial cour t improperly

applied the enha

ncement factor

relati ng to t he appellant’s abuse of a position of public trust to enhance his sentence for official misconduct. This court has previously

held t hat the abuse

of a position of public trust is inherent in the offense of official misconduc tand, therefore, cannot enhance a sentence for that offense. State v. Billy Bivens
, No

. E1999-00 086-CCA-R3-CD
, 2000 WL 968789, at *9 (Tenn. Crim. App. at Knoxville, July 14, 2000).

The appellant does challenge the trial court’s enhanc

ement of all

of his sentences on the basis that he committed the offenses to gratify his desire for pleasure or

excitement. Tenn. Code-17-

Ann. § 40-35-114(7). I

n particular, the

appellant compla

ins that the court f

ailed to “state

what facts

or circumstances he bases his decis ion on.” We agre

e with the appellant tha

t the trial court sh

ould include in the record “sp

ecific findings of fact upon which application of the sentencing principles

was based.” Tenn. Cod

e Ann. § 40-35-209 (c) (1997); Ten n. Code Ann. § 40-35 -210(f); se e also Statev. Dies , 829 S.W.2d 706, 710 (T enn. Crim. App. 1991 ); State v. Jason C. Car ter , No. M1998-00798-CCA-R3-CD, 2000 WL 515930, a t *10 (Tenn. Crim . App. at Nashville, April 27, 2000), perm. to appeal denied , (Tenn. 2000). Moreover, we agree with the appellant that the trial
court minimally, at

best, complied with

this requirement in applying the enhancement factor set forth in Tenn. Code Ann. § 40-35-114(7). Nevertheless, pursuant to our de novo review, we approve the trial court’s consideration of this factor.

First, the fact or i s no t in here nt i n an y o f the appellant’s offenses, and, therefore, application of the factor did not run afoul of the general

rule that factors which are elements of or otherwise inherent in a par

ticular offense

“should not be giv

en substantive we

ight i n in creasing a sentence.” State v. Pike , 978 S.W.2d 904, 927 (Tenn. 1998); see also State v. Winfield , 23 S.W.3d 279, 283 (Tenn. 2000).

In particula

r, our supreme

court has observed

that many rapes are committed for purposes other than pleasure or excitement. State v. Carico , 968 S.W.2d 280, 286 (Tenn. 1998);

see also State v. Spratt

, 31 S.W.3d 587, 608 (Tenn. C rim. App. 2000). Moreover, the evidence adduced by the State at the appellant’s trial established that he committed the rape in this case and, therefore, the burglary and official misconduct offenses for the purpose o

f pleasure or exc

itement. For example, SAH testified at trial that, pr ior to rapi ng her, the appellant discussed with her “different ways y ou could [engage in sexual intercourse] and that - - and different positions and stuff like that.” Moreover, SAH testified that the appellant kissed her, “rubb[ed] . . . on [her] breasts and down in the vaginal ar

ea,” and “suck[e

d] on [her breasts]” p

rior to engag

ing in sexual inter

course withher. Finally, in his statement to the police, the appellant conceded that he achieved an erection during his encounter with SAH. Contrary to t he appellant’s su

ggestion in

his brief, the State need
notprove that a defendant ejaculated during the course of a

rape in order to establish enhancement factor (7). See State v. Kissinger , 922 S.W.2d 482, 490-491 (Tenn. 1996) (“That orgasm did or did
notoccur is simply one factor a court may consider in determining whether the offender committed the offense to gra

tify the off

ender's desir

e for pleasure o

r excitement.”); see also, e.g. , Statev. Eldred Reid
, No. 01C01-951 1-CC-0039 0, 1997 WL

311916, at *6 (Tenn. Crim. App. at Nashville, June 6, 1997) (approving the application of enhancement factor (7) to a defendant’ s sentence for rape, “[e]ven though [the defendant] did not ejaculate”).

The appellant also

complains, in essence, that the trial court failed to accord adequ

ate weight to his lack of a criminal record in mitigating his sentence s. Tenn. Code Ann. § 40-35- 114(13). Specifically, the appellant argues that the

trial court improp

erly “merged” its consideration of the appellant’s criminal record or lack thereof with its consideration of the mitigating factor set forth in Tenn. Code Ann. § 40-35-113(11), that the appellant committed the offenses “under such unusual circumst

ances that it is unlikely that a sustained intent to violate the law motivated the crim inal conduct.” The appellant observes in his brief, “The Court’s merging of the two distinct mitigating factors becomes an issue because the Court makes hissentence determination based on how many mitigating factors there were ver sus how many enhancement factors there were.”4 Our supreme court recently approved a court’s consideration of a defendan t’s lack of a criminal history in

mitigating

a defendant’s sentence. State v. Gutierrez
, 5 S.W.3d 641, 646-647 (Tenn. 1999). Thus, in State v. Kelley , 34 S.W.3d 471, 483 (Tenn. Crim . App.), perm. to appeal denied , (Tenn. 2000), we observed that, “relativ e to sentencing, an individual’s past essentiall y stands as a witness either for or against him or her.”

-18- Contrary to the app ell ant’s observation, this court has previously stated that “[t]he appellant 's sente nce is not de termined by the mathematical process of adding the sum total of enhancing factors present then sub tracting from this figure the mitigating factors present for a net number of years.” State v. Boggs , 932 S.W.2d 467, 475 (T enn. Cr im. App. 19 96). Rather, [t]here is no particular weight assigned to any gi ven [mitigating or] enhancement

factor by the 1989 Sentencing Ac t an d the “weight af f ordedmitigating or enhancement factors derives from balancing relative degrees of

culpability

within the totality of the circumstances of t he case involved.” In other words, the weight given to any existing factor is left to th e trial court’s di

scretion so

long as i t complies with the purposes a nd principles of se

nte nc ing and its findings are adequately supported by the record. Statev. Shropshire , 874 S.W.2d 634, 642 (Tenn. Crim. App. 1993) (citation omitted). Thus, even if the trial court weighed t he t wo mitigating fa

ctors at issue less

heavily tha

n the appellant fe

els appropriate

by “merg

ing” its consider

ation of the fact

ors, the appellan

t is not thereby en

titled to relief.

In any case, we conclude that, while the record supports the trial court’s consideration of the appellant’s lack o f any c rim ina l hi sto ry, 4 the record preponderates against the trial court’s application of mitigating factor (11). As noted by the trial court, whether a defendant poss

esses a criminal history may be relevant to whether a susta ined intent to violat

e the law motivate

d his criminal c onduct in

the case under consideration. Cf., e.g.

, State v. Carlos Dem etrius Harris , No. E2000-00718-CCA-R3-C D
, 2001 WL 9927, at *12 (Tenn. Crim. App. at Knoxville, January 4, 2001); State v. Joe C. Anderson , No. E1999-02485-CCA-R3-CV, 2000 WL 1285258, at *6 (Tenn. Crim. App. at Knoxville, September 12, 2000), perm. to appeal denied
, (Tenn. 2001). Ne vertheless, the State adduced circumstantial evidence at trial that the appellant drove SAH to the ReMax Realty office building with the in tent to rape her,

susta i ned this intent upon entering the building, and further persiste

d in this intent despit

e SAH’s ensuing a

nd repeated pro

tests.

In sum, enhancemen

t factors (7) an

d (15) are applic

able to the appellant’s sentence for aggravated rape; enhancement factors (7), (9), and

(15) are applicable to the appellant’s sentence for burglary; and enhancement factors (7) a nd (9) are ap p licable to the appellant’s sentence for official misconduct. Tenn. Code Ann. § 40-35-114. Moreover, the appellant’s lack of any pr ior criminal history is an appropriate con sideration indetermining the length of the appellant’s sentences for all three offen

ses. Tenn. Code Ann. § 40 -35-113(13). The

se conclusions leave the appellant’s
sentences for aggravated rape and b urglary u ndisturbed. Howe

ver, because th

e trial court impr

operly relied upon the appellant’s abuse of a position of

public trust in imposing a maximum sentence of-19-

two years inca

rceration in the

Department for t

he official misconduct c onviction, we reduce the appellant’s sentence for that offense to one year a nd five months incarceration.

III. Conclusion For the foregoingreasons, we affirm the judgments of the trial court in the aggravated rape and b urglary cases and affirm as modified the judg ment of the trial court in the official misconduct case.

___________________________________ NORMA McGEE OGLE, JUDGE